Local News

Lawsuit filed over odor from Fort Morgan beet factory

Denver attorney seeking to make it a class-action suit

By Jenni Grubbs

Fort Morgan Times

Posted:
11/06/2017 09:33:11 PM MST

A Denver lawyer is suing Western Sugar Cooperative on behalf of Fort Morgan resident Amy Prince and a proposed class of "similarly situated" people over the "noxious odor" that the lawsuit states was produced by the Fort Morgan sugar beet plant and then "invaded" Prince's property.

Fuicelli & Lee, P.C., filed the lawsuit Oct. 4 in Morgan County District Court. That firm is now is waiting for Western Sugar to file a response to the complaint, which has to happen by a Nov. 9 deadline, according to attorney Keith Fuicelli.

"Things are going to start happening," he said of the lawsuit.

In August, Fuicelli sent out letters to Fort Morgan residents seeking their experiences with the sugar beet plant and odors.

"We've had hundreds of responses," the lawyer said.

But just because people responded does not meant they are specifically named in the lawsuit, Fuicelli explained. One lead complainant is named in the suit, and if the class of people in the same situation were to be certified by the court, any judgment would be on behalf of that class.

"Eventually, the court has to agree to certify the class," Fuicelli said, and they would be the people "similarly situated" as the lead plaintiff. "All of these folks have similar damages."

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The lawsuit states that Western Sugar "owns and operates a sugar beet manufacturing facility where it processes beets into sugar and sugar by-products" and "releases noxious odors onto Plaintiff's property, causing property damage through nuisance and negligence and gross negligence entitling Plaintiff to an award of compensatory, and injunctive relief not inconsistent with Defendant's State and Federally enforced Air Permits."

Fuicelli is awaiting Western Sugar's response to the lawsuit.

"They have to file an answer by Nov. 9. That's when everything will get started," he said.

The sugar cooperative declined to offer a reaction to the lawsuit to the Fort Morgan Times.

"Western Sugar is not able to comment on pending litigation at this time," stated Heather K. Luther, Western Sugar Cooperative vice president and general counsel.

But there are plenty of people who are likely to want to know what the sugar cooperative's response will be, or at least that's what Fuicelli believes.

"I would think that the town's going to have great interest," he said. "We'll see what happens next."

The lawsuit proposes that the class include "All owner/occupants and renters of residential property residing within one and a half (1.5) miles of the facility's property boundary."

It will be up to the court to determine if that proposed class is valid and whether or not to provide it certification. And there is quite a ways to go before such a determination would be made.

"There's a bunch of discovery before the court certifies the class. There's this huge fight," Fuicelli said.

There also would be the possibility of the court modifying the boundaries for the class, or the lawyers proposing subclasses later on.

"If the court does (certify the class), theoretically you would have a trial, the class versus the defendant and jurors would decide."

If it gets to that point, there also could be a settlement reached, in which case the members of the class would be notified of their options and how they could receive some compensation.

Still, there also is the possibility of the court choosing not to certify the class at all, which would lead to the case's dismissal.

But Fuicelli thinks his firm has a case for getting the class certified and pursuing the legal action in court, based on the stories he heard from Fort Morgan and area residents in response to his letter.

"It was the same story, and the response was overwhelming," he said. "99-plus percent of people said it was the same story, that they can't open their windows and they had a white film on everything" and the odor was driving off business and visitors.

Fuicelli also pointed to concerns he had heard about negative effects of the odor on property values and at a time when demand was high for property in rural areas not too far from Denver.

The lawsuit states that "residents of over 100 households have already communicated with Plaintiff's counsel regarding their experiences with Defendant's emissions."

Out of the people he heard from, Fuicelli picked Amy Prince, a pediatrician who lives "very close to the plant" as his lead defendant for the lawsuit.

"She has a real strong desire to fix the problem," the lawyer said. "She just seemed to be a real good person to lead the charge."

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